Mr Rodney Maclure v Stottys Pty Ltd T/A Victor Tyrepower

[2014] FWC 1069

[2014] FWC 1069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Rodney Maclure
v
Stottys Pty Ltd T/A Victor Tyrepower
(U2013/2871)

COMMISSIONER SPENCER BRISBANE, 20 FEBRUARY 2014

Application for relief from unfair dismissal - jurisdictional objection - Applicant not protected from unfair dismissal - minimum employment period.

Introduction

[1] This decision relates to an application made by Mr Rodney Maclure (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Stottys Pty Ltd T/A Victor Tyrepower (the Respondent) was harsh, unjust or unreasonable.

[2] The Respondent has raised a jurisdictional objection in relation to the Applicant’s application, alleging that the Applicant was not a person protected from unfair dismissal at the time of his dismissal, because he had not completed the minimum employment period.

[3] This decision considers the jurisdictional objection only.

[4] While not all of the evidence and submissions in the matter are referred to in this decision all of such have been considered.

Background

[5] The Applicant filed a Form F2 Application for Unfair Dismissal Remedy on 27 August 2013. The application stated that the Applicant commenced employment on 30 March 2012; a Friday. The application also stated that the Applicant was notified of the dismissal on 15 August 2013 and that the dismissal took effect on this date. The Applicant noted on the application however that he “[has] been injured on work cover and [has] not returned to work since the date of injury, 28/03/2013”

[6] The application stated that the Applicant was dismissed for poor work performance, for being slow and argumentative. The Applicant alleges several procedural fairness issues.

[7] On 21 October 2013, the Respondent filed a Form F3 Employer’s Response to Application for unfair Dismissal Remedy. The response stated that the Applicant commenced employment on Monday, 2 April 2012. The response further stated that the dismissal took effect on 13 March 2013 but that the Applicant was notified of the dismissal on 28 March 2013.

Relevant Provisions of the Legislation

[8] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.”

[9] Section 382 of the Act provides:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period....”

[10] It is not disputed that the Respondent is a small business employer. Section 383 of the Act provides:

“383 Meaning of minimum employment period

The minimum employment period is:

...

(b) if the employer is a small business employer—one year ending at that time.”

[11] Section 384 of the Act defines “period of employment” as follows:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.”

[12] “Service” is defined by s.22 of the Act as follows:

“22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down underPart 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly...”

[13] There are no issues concerning employment with another employer or a transfer of business.

Summary of Respondent’s submissions and evidence

[14] The Respondent submitted that the Applicant commenced employment on 2 April 2012. In this regard the Respondent filed a “Weekly Time, Pay and Wages Book”. This document does not record time and attendance; it does not record start and finish times on specific days. The document appears to record wages payments to the Applicant. It is clear that this document has been completed by the Respondent, rather than the Applicant.

[15] The first entry on the document, under the column “week ending”, indicates “THURS 5-4-12”. The Respondent has included various notes placed across the document. The record does not indicate the base hourly rate, although the Respondent submitted that, at the time, the Applicant received a base hourly rate of $20.00.

[16] The Respondent submitted, in relation to this document, that the first entry, being the purported first wage payment, was for an amount of $640.00 (gross). This amounts to a payment in respect of four days (Monday, 2 April to Thursday, 5 April 2012). The Respondent stated that this payment was made on 10 April 2012 (the following week) because the Applicant did not provide his banking details to the Respondent until this time.

[17] The following entry, and all further entries in this document, show payment for an amount of $810 (gross) which the Respondent submitted was a “full pay”; a full week. This payment was stated to be made on the 13th of April 2012.

[18] The Respondent stated that payslips were not provided. The Respondent submitted that this was agreed between the parties at the time of commencing employment. The Applicant disputed this.

[19] The Respondent stated that on or about 2 or 3 March 2013 he “informed” the Applicant that he should seek employment elsewhere. This was said to be because the Applicant was not physically coping with the position and had not done so since his commencement. The Respondent stated that he had “planned” to dismiss the Applicant at the time anyway, because the business could not support the addition of the Applicant and various performance issues.

[20] The Respondent submitted that he wrote a dismissal letter on 13 March 2013. The Respondent stated that he delivered the letter to his residence “that evening”.

[21] The dismissal letter was filed by the Respondent. The dismissal letter, dated 13 March 2013, relevantly stated:

“Rodney, further to our discussion in early Feb this year where i (sic) suggest that maybe you should seek less physical work or try and get some sort of pension as you seem to really struggle a lot with the work you are required to perform here at Tyrepower.. (sic) Also i (sic) refer you to our discussion on or about the 6th of march this year as to the business being sold by the end of March and the new owners will not employ you ..(sic) I now wish to inform you that regardless of the business sale your employment will be terminated on the 28th of March 2013 .. (sic) Regardless of the sale I have decided to scale back to a proprietor only operation.

...

I believe i (sic) owe you nearly three weeks holiday pay.”

[22] The Respondent also made a number of submissions in relation to the Applicant’s WorkCover matter and performance issues. These matters are not directly relevant to the jurisdictional objection and do not need to be recounted.

Summary of Applicant’s submissions and evidence

[23] The Applicant submitted extensive submissions. Much of the material is in relation to matters in dispute between the parties, not relevant to the jurisdictional objection. Only those matters relevant to the jurisdictional objection need to recounted although all of the material has been considered.

[24] The Applicant submitted that he commenced employment with the Respondent on Friday, 30 March 2012 and ceased employment on Tuesday, 2 April 2013. The Applicant was subsequently “on Work Cover” until 20 June 2013.

[25] The Applicant disputed the wages record submitted by the Respondent. The Applicant submitted that he cannot have commenced work on Monday, 2 April 2012, because on this day he attended at a Dental practice to have a tooth removed. Attached to the Applicant’s material was a copy of a bank statement in the name of Mr R D Maclure. The statement shows a transaction dated 4 April. The transaction is described by the statement as “2/04/2012 D E Harvey Dental P/”.

[26] The Applicant submitted that he was absent from work on this day because of the appointment, which had been booked in advance and for which the Respondent was aware. It would appear that on the Applicant’s submission, this was taken as a day of unpaid leave.

[27] The Applicant submitted that he commenced employment with the Respondent on 30 March 2012, after having contacted the Respondent to enquire about commencing work for the Respondent. The Applicant submitted that he contacted the Respondent on 27 March 2012. It was agreed between the parties that the Applicant would commence employment on 30 March 2012 but would not work on 2 April, to account for the dental appointment.

[28] The Applicant’s bank statement also evidences receipt of, what was submitted to be wages although it is noted that the statement makes no reference to wages or the Respondent’s business, on 11 April and 13 April. This generally reconciles with the Respondent’s records after allowances are made to account for bank clearing times.

[29] The Applicant submitted however that the gross payment in that first week (being $640.00 GROSS), does not equate to a start date of Monday, 2 April 2012, as the Respondent submitted. The Applicant submitted that he worked 32 hours within the first week. This was made of the following:

“Friday - 7.25hrs

Saturday - 3hrs

Tuesday - 7.25hrs

Wednesday - 7.25hrs

Thursday - 7.25hrs”

[30] At the agreed base rate (which the Applicant does not dispute) of $20.00 per hour this equates to $640.00 GROSS. The Applicant raises questions as to the reliability of the document and noted that his signature does not appear on the document; despite there being a column for that purpose.

[31] The Applicant disputed that the Respondent dismissed the Applicant in the manner in submitted. The Applicant stated that the Respondent “effectively terminated my employment much later in April 2013”. At this time the Applicant stated that he was on leave due to a workplace injury. The Applicant says that his dismissal only became clear, in August, after the Applicant was cleared to return to work.

[32] The Applicant stated his “belief” that the Respondent returned from a period of leave on 3 April 2013, at which time he was presented with a medical certificate requesting a “leave of absence” due to the alleged workplace injury. This fact, it was submitted, angered the Respondent to the point where he decided to terminate the Applicant’s employment.

[33] The Applicant also submitted that he “believed” that the events concerning the termination date of 28 March 2013 “occurred” at a time between the “week beginning” 8 April 2013 and19 April 2013. The 19th of April 2013 was when the Applicant was paid his remaining leave entitlements. Although, the Applicant stated that at no time during this period did the Respondent notify the Applicant that his employment had ended. During this period the Applicant also stated that the Respondent requested that he return the keys to the business.

[34] As to the date of dismissal, the Applicant submitted that his final day of work was 2 April 2013, being the day before the Respondent returned from leave. The Applicant submitted that the Respondent was on leave from 27 March 2013 to 3 April 2013. During the period of the Respondent’s leave, the Applicant submitted that a casual employee was hired.

[35] The Applicant stated that he had been “nursing” an injury since 22 March 2013 and visited a Physiotherapist on 28 March 2013. Subsequently, the Applicant attended upon a general practitioner who completed a Workers’ Compensation Medical Certificate. The Applicant filed a copy of a tax invoice from “Physique Health” which identified a payment on 28 March 2013. A Workers’ Compensation Medical Certificate was also included, dated 28 March 2013. The Workers’ Compensation Medical Certificate identified the “date of injury” as 5 November 2012.

[36] The Applicant stated that he returned to work on the 2nd of April 2013. It is noted that it is somewhat unusual that, having seen a Medical Practitioner, on 28 March 2013, and having been certified as “not capable for any type of work”, on 28 March 2013, the certificate would not operate until 3 April 2013. This is even stranger when one considers that the “date of injury” was said to be 5 November 2012.

[37] The Applicant stated that the medical certificate was hand-delivered to the Respondent on 3 April 2013. The WorkCover claim or application was “opened” the following day, on 3 April 2013.

Conclusion

[38] The Fair Work Regulations 2009 do not currently prescribe any different period for the purposes of s.22(2)(c).

[39] Section 22 of the Act starts by establishing the “general meaning” of “service” as the period in which the employee is employed by the employer. Consequently, the first question for consideration in resolving the dispute in this jurisdictional objection requires a factual finding of the actual start date of the Applicant’s employment with the Respondent and the dismissal date from that employment.

[40] This dispute arises, in part, because of the poor quality of records that appear to have been maintained by the Respondent. The records in evidence before the Commission do not appear to meet the minimum requirements of records required by the Act and Regulations.

[41] The parties are in dispute as to when the employment relationship commenced. I find that the Applicant commenced employment on Friday, 30 March 2012, as submitted by the Applicant. The evidence of the Respondent on this point does not match the records and, more particularly, the undisputed wage payment of $640.00 and the undisputed base hourly rate.

[42] I have not placed any weight on the record filed by the Respondent. The record has been completed by the Respondent, has clearly been amended, does not record when or how the entries are made and, importantly, has not been endorsed by the Applicant in any way, despite including a column for the Applicant’s signature. The Applicant also disputed that this document was every used during his employment. In this regard I note that the document ends with an entry for 28 June 2012, several months before the Applicant’s employment ended. This may be accounted for by the end of the financial year, but it is unclear.

[43] However, the parties are not in dispute regarding the wage payments and the base hourly rate. The parties are also not in dispute about the ordinary working hours of the Applicant. If the Applicant was receiving $20.00 per hour and received a payment for $640.00 that equates to 32 hours exactly. The record submitted by the Respondent indicates that the Applicant received a payment of 7.25 hours per day and 3 hours on Saturday. Accepting the Applicant’s evidence on this point it is clear that the Applicant worked the Friday, Saturday, Tuesday, Wednesday and Thursday of that first week of employment. This reconciles.

[44] Further, it is illogical that the Respondent would have paid the Applicant, who at the time had only worked for the Respondent for less than one week, additional wages, beyond that agreed.

[45] Having found that the Applicant commenced work on 30 March 2012 I now turn to consider the end of the employment relationship.

[46] The parties are also in dispute about the period that employment ceased. The Applicant makes several inconsistent submissions about when the employment relationship ended. The Applicant has stated that he was “effectively terminated....later in April 2013”, that the “truth finally came out” “later in August”, that the Respondent “decid[ed] to terminate [his] employment” “on the 3rd of April, 2013”. The evidence before the Commission is entirely unsatisfactory. The lack of reliable employment records filed by the Respondent, and probably the failure to maintain them throughout the Applicant’s employment, has made the Commission’s task a significantly more difficult one than it otherwise should be.

[47] Having considered the evidence, and specifically the Workers’ Compensation Medical Certificate, I find that the Applicant was not dismissed by way of the termination letter relied upon by the Respondent. It is illogical that, if the Respondent’s evidence was accepted, the Respondent dismissed the Applicant, received a Workers’ Compensation Medical Certificate and took no action, whatsoever to challenge this certificate. The Respondent filed no evidence about this at all.

[48] Further, the Applicant strongly refuted that the typed termination letter, filed by the Respondent in relation to this jurisdictional objection, was legitimate. The Applicant suggested that the letter had been created after the directions in this matter were issued. I find that the letter was not created and delivered to the Applicant as relied upon by the Respondent. The Respondent, throughout these proceedings, has filed all documents as handwritten notes. The Respondent’s employment records - payslips (the one payslip in evidence for another employee), time and attendance records, payment and taxation records and previous correspondence - are handwritten. I am not satisfied, on the evidence before the Commission, that the Applicant’s employment ceased on 28 March 2013.

[49] In order for the Applicant to be a person protected from unfair dismissal the date of termination, given the finding of the date employment commenced, must be at least 30 March 2013.

[50] The Applicant relies upon a discussion between the parties that occurred on 15 August 2013. The Applicant submitted that this was the date he was notified of the dismissal and the date upon which the dismissal took effect.

[51] The Applicant submitted a letter; addressed to the Respondent, dated 15 April 2015 (the Applicant stated that the reference to 2015 is an error and should be 2013). This letter follows the Applicant’s workers’ compensation claim and, the Applicant stated, unsuccessful attempts by the Applicant to discuss the matter with the Respondent. This letter makes no mention of dismissal or of termination. I accept that this letter was sent to the Respondent on 15 April 2013. This leads to a finding that at least as at the 15th of April 2013 the Applicant was in employment, even though not working due to his injury. It is not logical that if the Applicant had been notified of his dismissal in mid-March, as submitted by the Respondent, this letter would not make a single reference to dismissal or termination.

[52] Having found that the period of service is at least the minimum employment period, I must consider if any period is an excluded period that should not count as service. The Respondent has not relied upon any period of excluded service during the period of service. No finding can be made that there was a period of excluded service that should be deducted. However, I am still required to consider this matter.

[53] A period of “unpaid leave” (subject to some exclusions, not presently relevant) is an excluded period and does not count towards an employee’s length of service. I am satisfied that the Applicant did present to work on Tuesday, 2 April 2013 after the public holidays over the Easter long weekend. There is no evidence that the Applicant was not paid for those public holidays, and I note that s.114 of the Act prescribes that an employee (other than a casual employee) is entitled to be absent from work on a public holiday if ordinarily rostered on that day; the evidence of the Applicant’s ordinary roster is not in dispute. An employee is also entitled, by operation of s.116 of the Act to payment for a public holiday, on which an employee is absent under s.114 of the Act. There is no period of excluded service on the material before the Commission.

[54] The evidence before the Commission is limited as to what the actual date of termination was. On the balance of probabilities I find that the dismissal was effected and notified in August 2013 as submitted by the Applicant. The Respondent’s evidence to the contrary is limited and unreliable.

[55] On that basis the Applicant has completed the minimum employment period and was a person protected from unfair dismissal. The jurisdictional objection is dismissed.

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